State of Louisiana Versus Hursen A. Patin

STATE OF LOUISIANA NO. 19-KA-157

VERSUS FIFTH CIRCUIT

HURSEN A. PATIN COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-3330, DIVISION "O"
HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

November 13, 2019

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
Robert A. Chaisson, and Hans J. Liljeberg

CONVICTIONS AND HABITUAL OFFENDER STIPULATION
AFFIRMED; ORIGINAL AND ENHANCED SENTENCES VACATED;
REMANDED FOR RESENTENCING
JGG
RAC
HJL

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Paul D. Connick, Jr.
Terry M. Boudreaux
Andrea F. Long
Blair C. Constant

COUNSEL FOR DEFENDANT/APPELLANT,
HURSEN A. PATIN
Richard A. Spears

GRAVOIS, J.

Defendant, Hursen A. Patin, appeals his convictions and sentences resulting

from guilty pleas to possession with intent to distribute cocaine, possession with

intent to distribute marijuana, and possession of hydrocodone. For the following

reasons, we affirm defendant’s convictions and habitual offender stipulation,

vacate defendant’s enhanced sentence on count one and his sentences on counts

two and three, and remand the matter to the trial court for resentencing, including

clarification of defendant’s parole status as of the time of resentencing.

PROCEDURAL HISTORY

On June 1, 2016, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Hursen A. Patin, with possession with intent to

distribute cocaine in violation of La. R.S. 40:967(A) (count one); possession with

intent to distribute marijuana in violation of La. R.S. 40:966(A) (count two); and

possession of hydrocodone in violation of La. R.S. 40:967(C) (count three).

Defendant pled not guilty at his arraignment held the following day.

On August 15, 2016, defendant withdrew his pleas of not guilty and pled

guilty as charged. After advising defendant of his Boykin1 rights, the trial court

accepted defendant’s pleas and sentenced him in accordance with the plea

agreement “as to counts 1 and 2, 15 years in the Department of Corrections” and to

five years in the Department of Corrections2 on count three. Defendant’s sentences

were ordered to run concurrently with each other and with any and all other

sentences, including the sentences on which he was “currently on parole.”

Immediately thereafter, the State filed a habitual offender bill of information

against defendant alleging that he was a second felony offender under La. R.S.

1
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
2
This Court has previously held that when the judge states that the defendant is sentenced to the
“Department of Corrections,” the sentence is necessarily at hard labor. State v. Jamison, 17-49 (La. App. 5 Cir.
5/17/17), 222 So.3d 908, 909 n. 2.

19-KA-157 1

15:529.1 as to count one. Defendant stipulated to being a second felony offender

as to count one. The trial court then resentenced defendant in accordance with the

plea agreement to fifteen years in the Department of Corrections on count one to

run concurrently with any and all sentences imposed, including the sentences on

which he was “currently on parole.”

Subsequently, on December 14, 2016, defendant, pro se, filed a “Motion to

Request a Psychiatric Evaluation And To Amend, Modify or Reduce Sentence.”

In this pleading, defendant requested the reversal of his pleas or that the trial court

order a psychiatric evaluation to determine whether he had the capacity to

understand the nature of the crimes to which he pled guilty, his pleas, the

proceedings, and the sentences imposed. He also requested a reduction of his

habitual offender sentence due to his mental illnesses and his cooperation with a

detective.

On January 3, 2017, the trial court issued an order denying defendant’s pro

se motion. It found that defendant was not entitled to relief because under La.

C.Cr.P. art. 881, he had begun serving his sentences and could not appeal or seek

review of a sentence imposed in conformity with a plea agreement that was set

forth in the record at the time of the plea.

On September 14, 2018, defendant, through counsel, filed by facsimile an

“Application for Post-Conviction Relief with Incorporated Memorandum and

Motion to Correct Illegal Sentence.” In his application, defendant claimed that his

trial counsel was ineffective because she was aware of defendant’s mental

deficiencies, but did nothing to make them clear to the trial court. Defendant

argued that at the time of the plea in question, he was not on his prescribed

medications, and he was not mentally capable of making decisions regarding plea

negotiations.

19-KA-157 2

In response, on September 24, 2018, the trial court issued an order

dismissing defendant’s application for post-conviction relief (“APCR”) without

prejudice, finding that it contained an issue as to form as defense counsel failed to

use a form approved by the Louisiana Supreme Court. The order further noted that

defendant’s application was premature since he had not exhausted his appellate

rights, and thus, his APCR was procedurally barred from review. Finally, the trial

court found that because defendant did not allege a valid claim reviewable in

accordance with La. C.Cr.P. art. 930.3 or 930.4, he was not entitled to the sought-

after relief at that time. However, in its order, the trial court further included that

“petitioner may file an application for post-conviction relief requesting an out-of-

time appeal per LSA-C.Cr.P. art. 924.1 and 930.8(A), within 30 days of this

order.”

On October 24, 2018, defendant, again through counsel, timely filed by

facsimile a Motion for Extension of time to “re-file in accordance with the Order

of the Court.” He requested an additional seven days to “re-file.” The order

granting the extension is blank, and it does not appear that the motion was ruled

on.

On November 15, 2018, defense counsel filed by facsimile an Application

for Post-Conviction and Motion to Correct Illegal Sentence. Defendant requested

that the trial court grant him an out-of-time appeal. On December 3, 2018, the trial

court issued an order dismissing defendant’s APCR without prejudice and granting

his request for an out-of-time appeal, noting that it had “previously granted

petitioner extra time for petitioner to file this request.” This appeal followed.3

3
The State, in brief, argues that this appeal is untimely because the trial court was without authority to
extend the time limitation for defendant to seek an out-of-time appeal through his APCR. Under the circumstances
present in this case, considering the substance of defendant’s pleading in order to do substantial justice to the parties,
we construe defendant’s original timely-filed APCR as a request for an out-of-time appeal, and we, thus, will
consider his appeal. See State v. Webb, 15-0962 (La. 9/25/15), 175 So.3d 954, 955 (observing that “[c]ourts should
look through the caption of pleadings in order to ascertain their substance and to do substantial justice to the
parties”) (quoting Smith v. Cajun Insulation, 392 So.2d 398, 402 n. 2 (La.1980)).

19-KA-157 3

FACTS

Defendant pled guilty, and thus, the facts were not fully developed at a trial.

However, during the guilty plea colloquy, the State provided a factual basis for

defendant’s charges. The State indicated that if it proceeded to trial, it would

prove beyond a reasonable doubt that on April 14, 2016, defendant knowingly or

intentionally possessed with intent to distribute cocaine in violation of La. R.S.

40:967(A) (count one); knowingly or intentionally possessed with intent to

distribute marijuana in violation of La. R.S. 40:966(A) (count two); and knowingly

or intentionally possessed hydrocodone in violation of La. R.S. 40:967(C) (count

three). Defendant admitted during the colloquy that he was guilty of the crimes.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues that the record is devoid of

any evidence that the filing of the habitual offender bill and his resentencing

immediately following were part of the plea agreement. The State responds that to

the contrary, the record reflects that defendant’s stipulation to the habitual offender

bill as a second felony offender was part of the negotiated plea agreement, of

which the parties and the trial judge were all aware.

A plea bargain is viewed as a contract between the State and one accused of

a crime. State v. Mitchell, 08-629 (La. App. 5 Cir. 1/13/09), 7 So.3d 744, 751, writ

denied, 09-0254 (La. 10/30/09), 21 So.3d 270. In determining the validity of

agreements not to prosecute or of plea agreements, Louisiana courts generally refer

to rules of contract law, while recognizing at the same time that a criminal

defendant’s constitutional right to fairness may be broader than his or her rights

under contract law. State v. Louis, 94-0761 (La. 11/30/94) 645 So.2d 1144, 1148.

The validity of any guilty plea depends on the circumstances of the case. State v.

Filer, 00-0073 (La. 6/30/00), 762 So.2d 1080 (per curiam).

19-KA-157 4

Once a defendant is sentenced, only those pleas that are constitutionally

infirm may be withdrawn by appeal or post-conviction relief. State v. Joseph, 14-

762 (La. App. 5 Cir. 3/25/15), 169 So.3d 661, 664. A guilty plea is

constitutionally infirm if it is not entered freely and voluntarily, if the Boykin

colloquy is inadequate, or when a defendant is induced to enter the plea by a plea

bargain or what he justifiably believes was a plea bargain and that bargain is not

kept. State v. McCoil, 05-658 (La. App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124.

Under substantive criminal law, there are two alternative remedies available for a

breach of a plea bargain: (1) specific performance of the agreement; or (2)

nullification or withdrawal of the plea. Mitchell, supra.

The record reflects that immediately after defendant’s original sentences

were imposed, the State filed in open court the habitual offender bill of information

against him on count one, alleging he was a second felony offender. The State

indicated that it had given trial counsel the habitual offender bill to review with her

client, and trial counsel stated that she and defendant had reviewed it. At that time,

the trial judge then asked defendant if he intended to stipulate to the habitual

offender bill, and defendant responded affirmatively. Defendant verbally

acknowledged that he was provided a copy of the habitual offender bill and was

able to review it with his attorney. Defendant, on that same date, also executed a

written waiver of rights form relevant to the habitual offender proceeding. On the

habitual offender waiver of rights form, defendant placed his initials next to an

advisal that a copy of the habitual offender bill was provided to him and was

reviewed by his attorney. During the colloquy and on the habitual offender waiver

of rights form, defendant expressed that he was satisfied with the trial court and his

attorney’s efforts to explain the rights and consequences regarding the habitual

offender bill, and he denied during the colloquy having any questions concerning

the stipulation.

19-KA-157 5

Accordingly, in conclusion, we find no merit to defendant’s arguments that

he was unaware of the State’s intention to file a habitual offender bill against him

on count one and that it was not part of his negotiated plea agreement. Further, the

record reflects that defendant was advised of the habitual offender rights he would

waive by stipulating to the habitual offender bill, and defendant received the

agreed upon enhanced sentence. See La. C.Cr.P. art. 881.2; State v. Moore, 06-875

(La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46. Therefore, there are no constitutional

infirmities in defendant’s stipulation to the habitual offender bill. This assignment

of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant argues that the trial court failed

to conduct an inquiry into his mental state to ascertain whether he could knowingly

and competently enter into a plea agreement. He suggests the failure to do so

requires that his guilty pleas be vacated. Defendant asserts that the record contains

evidence that he suffers from serious mental illnesses for which he takes many

medications. The State responds that defendant is not entitled to relief as he has

failed to establish it was more probable than not he lacked the mental capacity to

enter his pleas.

Several months after the guilty plea proceeding, on December 14, 2016,

defendant filed a pro se Motion to Request a Psychiatric Evaluation And To

Amend, Modify or Reduce Sentence. In his motion, defendant provided the names

of several employees at the Jefferson Parish Human Health Care Authority and

Behavior Center, who he alleged shared in his concern that he was not capable of

entering his pleas. Defendant stated that prior to the commission of his underlying

crimes, defendant was diagnosed by these doctors with:

a) major depressive affective disorder recurrent episode severe degree
specified with psychotic behavior;

19-KA-157 6

b) schizo, paranoid nos [sic];

c) post-traumatic stress disorder;

d) schizophrenia disorder;

e) other and unspecified hyperlipidemia dyslipidemia; and

f) other abnormal glucose.
Defendant also contended that he was taking the medications Seroquel,

Zoloft, Hydrocoxyzine Pamoate, Atorvastatin Calcium, and Depakate and listed

their various side effects. Defendant wrote that while he was in the Jefferson

Parish Correctional Center during pre-trial proceedings, he wrote a letter to the

Jefferson Parish Correctional Center chaplain that he wanted to die as “he was an

unconsented seed of evil and a letter to you expressing the same.” Defendant

expressed that his psychological disorders began in “1968 when his mother was

raped at the age of 13 years old,” and other mental diagnoses included short

attention span, behavioral problems, slow learning disorder, mentally and

emotionally disturbed, hallucinating disorder, paranoid disorder, personality

disorder, antisociable disorder, and drug and alcohol disorder. He stated that

several hospitals in the area had psychiatric reports to verify his conditions.

Attached to defendant’s pro se motion are three pages from a thirty-two-

page document entitled “Complete EMR Record,” dated July 25, 2016. The

documentation contains defendant’s information and prescribed medications,

including Seroquel, Zoloft, and Depakote. The document further contains a

section called “Current Problems” and contains references to an unspecific mood

disorder, “major depressive affective disorder recurrent episode severe degree

specific as with psychotic behavior,” “major depression disorder … in full

remission,” post-traumatic stress disorder, and “schizo, paranoid.”

19-KA-157 7

On January 3, 2017, the trial court denied defendant’s pro se motion, finding

that his sentence could not be amended under La. C.Cr.P. art. 881, and he was not

entitled to the relief sought.

On appeal, defendant does not claim any specific encounters with either his

trial counsel or the trial judge during pre-trial proceedings or at the time of his

pleas that indicated he was not “clear-headed and competent.” He does not assert

that he raised the issue of his competency prior to pleading guilty, nor does he cite

any instances which would have resulted in the trial court having a reasonable

ground to require a mental examination. Rather, he argues that in light of his

allegations made after he pled guilty that he suffers from mental illnesses, the trial

court failed to inquire into whether he was able to knowingly and competently

enter his pleas at the time they were made.

A defendant does not have an absolute right to withdraw a guilty plea. State

v. Williams, 18-71 (La. App. 5 Cir. 7/31/18), 251 So.3d 1250, 1256; State v.

Honeycutt, 41,601 (La. App. 2 Cir. 2/28/07), 953 So.2d 914, 918. As previously

stated, once a defendant is sentenced, only those pleas that are constitutionally

infirm may be withdrawn by appeal or post-conviction relief. Joseph, supra. A

guilty plea is constitutionally infirm if it is not entered freely and voluntarily, if the

Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by

a plea bargain or what he justifiably believes was a plea bargain and that bargain is

not kept. McCoil, supra. A guilty plea will not be considered valid unless the plea

was a free and voluntary choice on the part of the defendant. State v. Nuccio, 454

So.2d 93, 104 (La. 1984); State v. Carroll, 17-17 (La. App. 5 Cir. 6/29/17), 224

So.3d 1179, 1185. Under Boykin, the decision to plead guilty will not be

considered free and voluntary unless, at the very least, the defendant was advised

of his constitutional rights against self-incrimination, to a trial by jury, and to

19-KA-157 8

confront his accusers. Id. The waiver of those rights must be on the record,

unequivocal, express and knowing, and free and voluntary. Id.

If a defendant pleads guilty, he normally waives all non-jurisdictional

defects in the proceedings leading up to the guilty plea, and precludes review of

such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697

(La. App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Additionally, an unconditional

plea, willingly and knowingly made, waives any and all non-jurisdictional defects

and bars a defendant from later asserting on appeal that the State failed to produce

sufficient proof at the habitual offender hearing. State v. Schaefer, 97-465 (La.

App. 5 Cir. 11/25/97), 704 So.2d 300, 304.

A defendant in a criminal case is presumed sane and responsible for his

actions, and the defendant bears the burden of proving otherwise. State v.

Tranchant, 10-459 (La. App. 5 Cir. 11/23/10), 54 So.3d 730, 734, writ denied, 10-

2821 (La. 4/29/11), 62 So.3d 108. The standard of proof is by a preponderance of

the evidence, and the defendant must show that it was more probable than not that

he lacked mental capacity to enter the guilty plea. Id.

A criminal defendant has a constitutional right not to be tried while legally

incompetent. State v. Carmouche, 01-0405 (La. 5/14/02), 872 So.2d 1020, 1041;

State v. Pullen, 19-4 (La. App. 5 Cir. 8/7/19), 2019 WL 3677889. In Louisiana, a

defendant’s mental incapacity to proceed exists when, as a result of mental disease

or defect, he presently lacks the capacity to understand the proceedings against him

or to assist in his defense. La. C.Cr.P. art. 641; Pollard, supra. A defendant’s

mental incapacity to proceed may be raised by the defense, the district attorney, or

the court at any time. La. C.Cr.P. art. 642; State v. Johnson, 10-612 (La. App. 5

Cir. 1/25/11), 60 So.3d 653, 657, writ denied, 11-316 (La. 6/17/11), 63 So.3d 1038.

The trial judge is required to order a mental examination of the defendant only

when he has a reasonable ground to doubt the defendant’s mental capacity to

19-KA-157 9

proceed. La. C.Cr.P. art. 643; State v. Pugh, 02-171 (La. App. 5 Cir. 10/16/02),

831 So.2d 341, 349.

In Tranchant, supra, the defendant challenged the validity of his guilty pleas

to charges of aggravated rape and aggravated burglary. Id., 54 So.3d at 732-33.

More specifically, the defendant alleged that despite evidence of mental illness and

mental retardation, the trial judge made no attempt to determine whether the

defendant was able to understand the consequences of his guilty pleas or to inform

him that he may have been waiving his plea of not guilty by reason of insanity. Id.

at 734. Following a review of the record, this Court found no evidence indicating

the defendant’s guilty plea was in any way constitutionally infirm. Id. at 733. The

record showed that during the plea colloquy, the trial judge advised the defendant

of the nature of the charges to which he was pleading guilty and further advised

him of his right to a jury trial, his right to confrontation, and his privilege against

self-incrimination. The defendant indicated that he understood these rights and

that by pleading guilty, he was waiving those rights. Id. Finding no merit to the

defendant’s argument that his guilty pleas were invalid, this Court noted that at the

time the defendant sought to withdraw his guilty pleas, he failed to provide any

documentation to substantiate his contention that his mental disorders prevented

him from entering a free and voluntary plea to the charged offenses. Id. at 734.

Further, this Court noted that the defendant had the opportunity during the plea

colloquy to inform the trial court that he did not understand the proceedings against

him, but failed to do so, and neither the trial court nor trial counsel, who observed

the defendant at the time of his guilty plea, found any reason to question his ability

to follow the court proceedings.

In the present case, upon review of the record, we find that there are no

constitutional infirmities as to defendant’s pleas. During the colloquy, the trial

judge informed defendant of the charges to which he was pleading, his Boykin

19-KA-157 10

rights, and his waiver of those rights by pleading guilty, and defendant indicated

his understanding of the charges and the waiver of his rights. Defendant

acknowledged that he was stipulating to the habitual offender bill and his waiver of

certain rights by entering his stipulation. Defendant denied that anyone had forced

or coerced him to plead guilty or made promises or threatened him to enter his

pleas. Also, defendant conveyed his understanding that he was admitting he had

committed the crimes of which he was charged by pleading guilty. When the State

provided a factual basis for the crimes, defendant indicated that he heard the

State’s factual basis and reiterated that he had committed the crimes. Defendant

also acknowledged the sentences he would receive as a result of his guilty pleas

and his stipulation to the habitual offender bill. The trial court asked defendant if

he had any questions for his trial counsel or the trial judge as it concerned the pleas

and habitual offender stipulation, and defendant responded negatively. He

responded affirmatively when asked if he was satisfied with his trial counsel’s

efforts to explain his habitual offender rights.

In addition, the waiver of rights form as to defendant’s underlying

convictions and sentences, dated August 15, 2016—the same date on which he

pled guilty—reflects advisals of defendant’s Boykin rights and the waiver of his

rights by pleading guilty as well as the sentences he would receive. Defendant’s

initials appear beside the advisal of each of his Boykin rights and that his trial

counsel had informed him of the sentences he would receive. Moreover, this

waiver of rights form contains a specific advisal that defendant was not suffering

from any physical or mental impairment that would affect his competency to enter

his pleas. Defendant initialed beside this advisal and placed his signature at the

bottom of the form.

Without any indication that defendant suffered from mental illnesses, we

find that the trial judge was not required to make an inquiry as to whether

19-KA-157 11

defendant was competent to proceed. Nonetheless, the trial judge did inquire into

defendant’s understanding of the consequences of pleading guilty and his

stipulation to the habitual offender bill, and asked defendant whether he had any

questions concerning the proceedings and if he was satisfied with his trial counsel.

Defendant’s simple and straightforward answers to the trial judge’s questions

during the colloquy fail to support his assertion that he did not understand the

consequence of his pleas, the proceedings, or the sentences imposed. Both trial

counsel and the trial court observed defendant during the guilty plea proceeding

and found no reason to question his ability to follow the proceedings.

Furthermore, the waiver of rights form reflects a specific notation that defendant

was not suffering from any physical or mental impairments that would affect his

competency to enter his pleas, and defendant initialed next to this advisal.

Although defendant submitted documentation suggesting that he has mental issues,

we find the existence of this documentation, which is not authenticated, does not in

any way prove that any mental disorders prevented him from entering free and

voluntary pleas.4

In conclusion, defendant has not shown that his pleas or habitual offender

stipulation were unknowingly and unintelligently entered or that he was not of

sound mental capacity at the time his pleas were entered. There are no

constitutional infirmities in defendant’s pleas, and defendant has not shown it was

more probable than not that he lacked the mental capacity to enter his pleas. This

assignment of error is without merit.

4
In the same pleading in which he first mentioned that he suffers with multiple mental illnesses and was
prescribed many medications for these illnesses, defendant also asked the trial court to consider that he cooperated
with a law enforcement officer in hopes for a reduction of his habitual offender sentence. We find that this request
by defendant is telling as to his state of mind, and more importantly, as to his mental capacity. Considering this,
along with his request for a psychiatric evaluation and vacation of his pleas, we find that defendant was only
expressing a change of heart or dissatisfaction with his sentences after he had served several months of his
sentences. Dissatisfaction with a sentence or a mere change of heart or mind by the defendant as to whether he
made a good bargain will not ordinarily support allowing the withdrawal of a bargained guilty plea. State v. Green,
03-410 (La. App. 5 Cir. 10/28/03), 860 So.2d 237, 242, writ denied, 03-3228 (La. 3/26/04), 871 So.2d 346.
Defendant cannot seek review of his sentences which were imposed in conformity with the plea agreement. See La.
C.Cr.P. art. 881.2.

19-KA-157 12

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920,

State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990).

First, the sentencing transcript fails to reflect that the trial court vacated

defendant’s original sentence on count one prior to imposing defendant’s enhanced

sentence as required by La. R.S. 15:529.1(D)(3). This Court has found that

corrective action is not required where the commitment/minute entry eliminates

any possible confusion as to the terms of the defendant’s confinement, and thus,

the failure of the transcript to show that the trial court vacated an original sentence

before resentencing a defendant as a habitual offender does not affect the

substantial rights of the defendant. See State v. Holmes, 12-351 (La. App. 5 Cir.

12/11/12), 106 So.3d 1076, 1083, writ denied, 13-0086 (La. 6/14/13), 118 So.3d

1080.

Here, the sentencing minute entry clearly reflects that the trial court vacated

defendant’s original sentence on count one, and that he was sentenced under La.

R.S. 15:529.1. However, the sole State of Louisiana Uniform Commitment Order

(“UCO”) does not reflect that defendant’s sentence on count one was enhanced but

states that a habitual offender bill proceeding occurred. Regardless, we find there

is no possible confusion as to the terms of defendant’s confinement on count one

because the trial court essentially reimposed the same sentence. See State v.

Ellison, 17-319 (La. App. 5 Cir. 12/13/17), 234 So.3d 217, 222, writ denied, 18-

0053 (La. 10/29/18), 255 So.3d 568.

Second, in imposing defendant’s enhanced sentence on count one of fifteen

years at hard labor, the trial court failed to state the sentence was to be served

without the benefit of probation or suspension of sentence pursuant to La. R.S.

15:529.1(G). The restrictions on parole eligibility imposed on habitual offender

19-KA-157 13

sentences under La. R.S. 15:529.1 “are those called for in the reference statute.”

State v. Esteen, 01-879 (La. App. 5 Cir. 5/15/02), 821 So.2d 60, 79 n. 24, writ

denied, 02-1540 (La. 12/13/02), 831 So.2d 983. At the time of the underlying

offense, the reference statute called for the first two years of the sentence to be

served without the benefit of parole, probation, or suspension of sentence. See La.

R.S. 40:967(B)(4)(b). Therefore, defendant received an illegally lenient enhanced

sentence on count one since the trial court failed to restrict the benefit of parole for

the first two years and the benefit of probation and suspension of sentence for the

entirety of the enhanced sentence. However, no corrective action is required as to

defendant’s enhanced sentence because under La. R.S. 15:301.1 and State v.

Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, a statute’s requirement that a

defendant be sentenced without the benefit of parole, probation, or suspension of

sentence is self-activating.

Third, at the time of the offense, a penalty for possession with intent to

distribute marijuana carried a mandatory fine of “not more than fifty thousand

dollars.” See La. R.S. 40:966(B)(3). The trial court did not impose any fine as part

of defendant’s sentence on count two. While this Court has held that statutes

providing for a fine of “not more than” a specified amount do require a mandatory

fine, this Court has also recognized that the matter is not free from doubt. State v.

Kerlec, 06-838 (La. App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied, 07-

1119 (La. 12/7/07), 969 So.2d 626. Although this Court has the authority to

correct an illegal sentence at any time pursuant to La. C.Cr.P. art. 882, the

authority to correct an illegally lenient sentence is permissive rather than

mandatory. However, it appears correction of defendant’s illegally lenient

sentence on count two as to a fine is unnecessary as the trial court imposed an

indeterminate sentence, as discussed below.

19-KA-157 14

Finally, in imposing defendant’s sentences, the trial court ordered

defendant’s sentences to run concurrently with each other and any and all other

sentences he had, including those on which he was “currently on parole.” Also,

when imposing his habitual offender sentence, the trial court ordered defendant’s

enhanced sentence to run concurrently with any and all sentences imposed,

including those on which he was “currently on parole.” The sentencing minute

entry and the UCO reflect that the trial court ordered defendant’s original and

enhanced sentences to run concurrently with any and all other sentences he may be

serving, “including parole time.” The record does not contain any evidence of

defendant’s parole status.

In State v. Ott, 12-111 (La. App. 5 Cir. 10/16/12), 102 So.3d 944, 955, this

Court found that the defendant received indeterminate sentences under La. C.Cr.P.

art. 879 because the trial court ordered his sentences to run concurrently with his

“parole time,” and the record was unclear as to the defendant’s parole status at the

time of his sentencing. This Court noted that “[u]nlike probation, there is no

prohibition against the trial judge ordering a sentence to run concurrent with a

parole revocation,” but nonetheless concluded the sentences were indeterminate

and remanded to the trial court for clarification of defendant’s parole status. See

also State v. Jamison, supra, 222 So.3d at 919.

Accordingly, we find that defendant’s enhanced sentence on count one and

his sentences on counts two and three are indeterminate, and thus in violation of

La. C.Cr.P. art. 879, because defendant’s parole status at the time his sentences

were imposed is unclear from the record. We therefore vacate defendant’s

enhanced sentence on count one and his sentences on counts two and three and

remand the matter to the trial court for resentencing, including clarification of

defendant’s parole status as of the time of resentencing.

19-KA-157 15

CONCLUSION

For the foregoing reasons, defendant’s convictions and habitual offender

stipulation are affirmed, defendant’s enhanced sentence on count one and his

sentences on counts two and three are vacated, and the matter is remanded to the

trial court for resentencing, including clarification of defendant’s parole status as

of the time of resentencing.

CONVICTIONS AND HABITUAL OFFENDER
STIPULATION AFFIRMED; ORIGINAL AND
ENHANCED SENTENCES VACATED;
REMANDED FOR RESENTENCING

19-KA-157 16

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 13, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-157
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE)
TERRY M. BOUDREAUX (APPELLEE) RICHARD A. SPEARS (APPELLANT) ANDREA F. LONG (APPELLEE)
JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED
TANYA P. FAIA (APPELLANT) HON. PAUL D. CONNICK, JR. (APPELLEE)
ATTORNEY AT LAW BLAIR C. CONSTANT (APPELLEE)
1421 NORTH CAUSEWAY BOULEVARD ASSISTANT DISTRICT ATTORNEYS
SUITE 101 TWENTY-FOURTH JUDICIAL DISTRICT
METAIRIE, LA 70002 200 DERBIGNY STREET
GRETNA, LA 70053